Raschilla v Westpac Banking Corporation

SUPREME COURT OF QUEENSLAND

CITATION:

Raschilla & Anor v Westpac Banking Corporation [2010] QCA 255

PARTIES:

YVONNE RASCHILLA AND STEVE RASCHILLA
(respondents/applicants/appellants)
v
WESTPAC BANKING CORPORATION
ABN 33 007 457 141
(applicant/respondent)

FILE NO/S:

Appeal No 9987 of 2010
SC No 9441 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

22 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2010

JUDGE:

Fraser JA

ORDERS:

1.   Application refused;

2.   Applicants to pay the respondent’s costs of and incidental to the application on the ordinary basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where the Chief Justice made an order pursuant to s 78(2)(c) Land Title Act 1994 (Qld) requiring the applicants to deliver up vacant possession of a property to the respondent – where Applegarth J stayed the order temporarily – where the applicants applied to this Court for a further stay of the order – where the respondent obtained a registered mortgage over the property as security for a loan to Ralacom Pty Ltd – where one of the applicants was the sole director of Ralacom – where Ralacom defaulted and the respondent appointed a receiver – where the applicants continued to occupy the property – where the Chief Justice held that an order made by consent on 9 June 2010 deprived the applicants of any right to occupy the property – where the applicants argued they were disadvantaged as self represented litigants, that the receiver was not validly appointed, that the respondent had unreasonably and unjustly frozen their accounts and did not require vacant possession to maximise the sale price of the property – where the applicants also argued that the Chief Justice was biased and had denied them procedural fairness in refusing their request for an adjournment – whether the applicants showed good reason for a stay to be granted – whether the applicants had a prospect of succeeding on appeal – whether a further stay should be granted

Land Title Act 1994 (Qld), s 78(2)

Elphick v MMI General Insurance Ltd & Anor[2002] QCA 347, applied

COUNSEL:

The applicant/appellants appeared on their own behalf
B O’Donnell QC for the respondent

SOLICITORS:

The applicant/appellants appeared on their own behalf
Gadens Lawyers for the respondent

FRASER JA:  Mr and Mrs Raschilla have appealed against an order made by the Chief Justice in the trial decision on 9 September 2010 that they deliver up possession to the respondent bank, Westpac, as registered mortgagee of Lot 8 on a certain building unit plan, otherwise described as Unit 10, within seven days of that order.

On the 16 September 2010 Applegarth J stayed that order until 4 pm today.  Mr and Mrs Raschilla have now appeared before me seeking a further stay of the Chief Justice’s order, presumably until after determination of their appeal.

In Elphick v MMI General Insurance Ltd…